NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 7 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DANIEL LEONARD, No. 20-35844

Plaintiff-Appellant, D.C. No. 2:19-cv-00956-TSZ

v.

MEMORANDUM*

THE BOEING COMPANY,

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington Thomas S. Zilly, District Judge, Presiding

Submitted October 5, 2021** Seattle, Washington

Before: PAEZ, M. SMITH, and NGUYEN, Circuit Judges.

Daniel Leonard appeals from the district court’s grant of summary judgment

to The Boeing Company on his claims for age-based disparate treatment under

Washington’s Law Against Discrimination, Wash. Rev. Code § 49.60.180(2), and

breach of contract. We have jurisdiction under 28 U.S.C. § 1291. Reviewing de

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). novo, see Christian v. Umpqua Bank, 984 F.3d 801, 808 (9th Cir. 2020), we

affirm.

1. Leonard proffered no evidence that Boeing’s stated nondiscriminatory

reason for terminating his employment—violation of its sexual harassment

policy—“was a pretext.” Mikkelsen v. Pub. Util. Dist. No. 1, 404 P.3d 464, 471

(Wash. 2017). Although McGivern omitted Kilby’s follow-up email from his

report, he conveyed its substance—that Leonard “did not bring up having an affair

again” after handing Kilby his phone number, and that “Kilby did not allege that

she’d had any other issues with Leonard, or that he treated her differently after she

did not accept his advances.”

While McGivern disclosed the “approximately 10 reports” of Leonard’s

“engaging in favoritism of women with whom he was allegedly having a sexual

relationship,” McGivern acknowledged that “[n]one of those reports appear to have

resulted in Employee Corrective Action.” Leonard does not dispute this

information’s accuracy, and it was relevant to the investigation of allegations that

he “engaged in sexual relationships with women reporting to him.”

Leonard’s assertion that the Employee Corrective Action Review Board

misapplied the aggravating and mitigating factors relevant to his policy violation

improperly relies on his subjective version of events rather than the evidence

presented to the review board. See Villiarimo v. Aloha Island Air, Inc., 281 F.3d

2 1054, 1063 (9th Cir. 2002). Leonard’s disagreement with how the review board

weighed the factors is not a basis to show pretext. See Diaz v. Eagle Produce Ltd.

P’ship, 521 F.3d 1201, 1214 n.7 (9th Cir. 2008) (“The focus of the pretext inquiry

is not to determine whether [the employer] was correct in determining that [the

employee’s] job performance was unsatisfactory, but simply whether [the

employee’s] performance was the real reason for the termination.”). The district

court properly granted summary judgment to Boeing on Leonard’s disparate

treatment claim.

2. Leonard also fails to show a triable issue of fact on his breach of

contract claim because PRO-1909 and the ECAPR matrix are not enforceable

“promises of specific treatment in specific situations” that modified his at-will

status. Mikkelsen, 404 P.3d at 477. To the extent Boeing’s policies contain

mandatory language, such language “does not set forth the specificity necessary to

create a binding promise.” Stewart v. Chevron Chem. Co., 762 P.2d 1143, 1146

(Wash. 1988). For example, “violations by managers must be scrutinized more

carefully to determine whether more severe ECA is warranted,” but how that

determination should be made is left to Boeing’s discretion. Similarly, facts and

findings must “be carefully evaluated for applicability to the aggravating or

mitigating factors,” but how to weigh the various factors is discretionary.

3 Moreover, Boeing’s policies unequivocally state that they “do[] not

constitute a contract or contractual obligation,” which is similar to the disclaimer in

Kuest v. Regent Assisted Living, Inc., 43 P.3d 23, 29 (Wash. Ct. App. 2002), and

dissimilar to the one in Mikkelsen on which Leonard relies. The district court

properly granted summary judgment to Boeing on Leonard’s breach of contract

claim.

AFFIRMED.

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